John Yoo has been hitting the op-ed pages alot, lately. The most recent one (that I know of) being this piece in the Wall Street Journal that attempts a critique of President Obama’s order to close Gitmo. While the piece is ostensibly about why closing Gitmo is a bad idea, some have argued that the real money shot is here:

What such a review would have made clear is that the civilian law-enforcement system cannot prevent terrorist attacks. What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)

Yeah, catch that?  According to Yoo, President Bush authorized waterboarding on three separate occasions.  This aside seems to have little relation to the more general argument and has caused some to wonder why Yoo inserted it.

Anyway, for a quick and funny fisking of Yoo’s piece, see this post at Attackerman (by Attackerlady).  The post’s ending pretty much sums up the situation:

For his finale, Yoo predictably and preemptively blames President Obama for the next terrorist attack. Of course he does. 

Overall, let me just say this: its closing time. Yoo doesn’t have to go home but he can’t stay here. The Bush administration is over. It’s like the old high school quarterback who’s the reliving his glory days while he’s fixing your furnace.  

Dude. Get out of my house.

UPDATE: My colleague Brian Tamanaha has generated a great deal of commentary over at Balkinization with his post on Yoo’s op-ed, arguing that Yoo is trying to deflect responsibility from himself and onto others.

UPDATE II: Scott Horton weighs in. Here are two snippets:

…his column in the Wall Street Journal and his presentations elsewhere tell us exactly what the defense will be. At its core is the argument that, no matter how mistaken, John Yoo acted in good faith when he issued the torture memoranda. He truly, sincerely believes the analysis of law that is presented in those memos. That’s why from April 2004 forward, Yoo has been unwavering in his adherence to the views put forth in those memos…

Immediately after reading Yoo’s memos it struck me that they were the product of reverse-engineering. The way they drifted through issues, the bizarre choice of precedent, the curious misreading of the Constitution in which the clause granting to Congress the authority to address questions surrounding detainees simply disappears–and the equally tendentious and absurd readings of international conventions and precedents–could be explained if you imagined that Yoo had been approached and told to craft a memorandum that legalized practices already in place.

The American Society of International Law has announced that the annual Pace Law School International Criminal Court Moot Competition, which is being held this weekend, is now the North American qualifying round for the ICC Trial Competition held in The Hague. The North American qualifying round is open to teams from the U.S, Canada, and Mexico.

The global rounds at the Hague will be held on February 16-20, 2009.  The new global competition is sponsored by the Dutch government, in cooperation with Pace Law School, the University of Amsterdam, the American Society of International Law, and the International Criminal Law Network (ICLN). 

According to the ASIL’s website:

Each team will submit three short memorials (briefs) requiring the students to research and develop arguments based on the three participants in ICC prosecutions, i.e., the Prosecution, the Defence and the Victims’ Advocates, a new role developed for the first time for the International Criminal Court. These memorials will be evaluated by legal scholars, and prizes will be awarded for best brief, second place runner-up, and third place runner-up in each of the three categories of memorials. Rules and regulations for participation are available on the ICC Trial Competition website. [See also this link: Case and Rules]

 

 Perhaps the most exciting feature of the Moot, and one unique to this competition, is that each team of students will participate in three rounds of oral arguments and have the opportunity of arguing from all three perspectives, prosecutor, defence counsel and victims’ advocate. Students who participated in a trial run for the Moot last year all commented that they had never experienced a better way of learning the substantive and procedural law in a given area and fully developing the arguments of the parties than by having the opportunity to make those arguments from all three perspectives during the Moot.

The two highest scored teams in the North American Round will advance to the finals in The Hague, to compete against qualifying teams from other areas of the world.

We wish the best of luck to the teams competing this weekend.

Every law professor has that one edited book to which they wish they had contributed.  This one is mine.  The contributors read like a Who’s Who of international criminal law:

A.  Major Problems of International Criminal Justice

Part I. How to Face International Crimes

Collective Violence and International Crimes, A. Ceretti

State Responsibility and Criminal Liability of Individuals, A. Bianchi

Alternatives to International Criminal Justice, J. E. Alvarez

Part II. Fundamentals of International Criminal Law

Sources of International Criminal Law, D. Akande

General Principles of International Criminal Law, G. Werle

International Criminalization of Prohibited Conduct, P. Gaeta

Gender-related Violence and International Criminal Law and Justice, C. Chinkin

Modes of International Criminal Liability, B. Swart

Part III. The Interplay of International Criminal Law and Other Bodies of Law

Comparative Criminal Law as a Necessary Tool for the Application of International Criminal Law, M. Delmas-Marty

The Influence of the Common Law and Civil Law Traditions on International Criminal Law, G.P. Fletcher

Humanitarian Law and International Criminal Law, M. Sassòli

Part IV. International Criminal Trials

The Rationale for International Criminal Justice, A. Cassese

International Criminal Justice in Historical Perspective: The Tension Between States’ Interests and the Pursuit of International Justice, M. Cherif Bassiouni

The ICC as a Turning Point in the History of International Criminal Justice, C. Kress

The ICC and Third States, Jia Bing Bing

Politics and Justice: The Role of the Security Council, D. Shraga

Problematic Features of International Criminal Procedure, M.R. Damaska

Cooperation of States with International Criminal Tribunals, G. Sluiter

Means of Gathering Evidence and Arresting Suspects in Situations of States’ Failure to Cooperate, R. Cryer

International v. National Prosecution of International Crimes, F. Jessberger

Judicial Activism v. Judicial Restraint in International Criminal Justice, S. Zappalà

B. Issues, Institutions, and Personalities

C. Cases

As the Table of Contents indicates, the book has a somewhat schizophrenic structure: the first section contains essays — all of which are essential reading — while the second and third essentially constitute an encyclopedia of international criminal law.  Section C, which provides capsule summaries of dozens of international and national cases involving international crimes — many of which are very obscure and nearly impossible to research — should prove particularly useful for students and scholars of ICL.  That section is worth the price of admission alone.

Even better, that price is impressively reasonable: $260 for the hardback, $90 for the paperback.  The paperback is a particularly good deal, given that the book checks in at more than 1000 pages.

Buy the book.  And ask the editors to invite me to contribute to the next edition.

I’m grateful to Professor Ochoa for her thoughtful contribution.  By way of reply to her post, I want to mention a couple of issues that I think are difficult puzzles for those of us who write in this area.

First, I particularly like Professor Ochoa’s suggestion that I include information about corruption and governance when assessing whether a SWF should be permitted to invest abroad.  Doing this would help sharpen my point nicely.  This comment—and the weakness in my paper that the comment helps to address—shows the problem with work, like mine, that makes use of empirical studies and other data-driven approaches without actually doing empirical work.  So for me the puzzle is how to make the strongest possible case based on evidence that is suggestive but not conclusive.  Professor Ochoa’s post points to why this is important.  In my paper, I included Chile on the list of states that simultaneously accept development assistance and maintain substantial sovereign wealth funds.  The inference I drew from this anomaly is that regimes in need of so much assistance even when holding large currency reserves might be insufficiently accountable to their people.  Professor Ochoa’s post showed one way to sharpen my analysis by suggesting other measures of accountability.  But even with her contribution, I’m still not sure how strong an inference I should draw from my own statistics.  Put another way, when is it acceptable to use a coincidental relationship as evidence—even with the appropriate disclaimers—in scholarship?

The second puzzle is more closely related to the substance of my paper and Professor Ochoa’s post. In my work on globalization and human rights, I have often cited the salutary effects of transparency on reducing official corruption and enhancing public accountability.  But I’m no longer sure why I and others are so certain that transparency is beneficial.  Other things equal it’s surely better to be transparent than not.  But how large an effect does transparency have?  The current financial crisis suggests that raw data isn’t enough to provide useful guidance to sophisticated investors.  How big a role should transparency play in any attempt to reduce corruption or increase accountability?

[Christiana Ochoa is Associate Professor of Law at the Maurer School of Law at Indiana University Bloomington]

I would like to supplement, rather than critique Patrick Keenan’s contribution to our deepening interest in and knowledge of sovereign wealth funds. For those of you who have not read the article, I recommend it. In it, you will find a chart presenting the official development assistance and SWF assets under management for a number of countries. What strikes me about this chart is that a third number for each country might support Keenan’s core argument (that a before being permitted to invest in SWFs a government might first, or at least conterminously, be required to invest in its social and physical infrastructure) at the same time as supplementing that argument.

I would suggest that each country’s corruption rating should inform how we interpret the numbers Keenan provides. Searching out those numbers, here’s what I found (for just a handful of the countries in his chart):

What this makes me think is that in addition to the theory of social arrears on which Keenan rests his argument, it would be helpful to consider the likelihood that the investments will eventually redound to the benefit of the SWF-country’s citizens. In the case of countries like those I included above, there is good reason to believe that endemic corruption will prevent citizens from enjoying the full benefits of their country’s resources, without regard to whether the profits from those resources are invested in SWFs or not. At the same time, however, there were also countries, like Chile, on Keenan’s chart with ratings of 23 (only five points more corrupt than the United States). These countries appear to be relatively accountable to their citizens and that should provide some comfort that their citizens will enjoy the profits from the sale of their resources, either now or, if the profits are invested in SWFs, at some point in the future.

Keenan has argued elsewhere that “the wealth created from SWFs can be compared with the revenues that come from the sale of natural resources.” This being the case, I would suggest two additional potential strategies that emerge from corruption-related work for ensuring that the profits from SWF investments benefit the SWF-country’s citizens. First, the financial reporting framework established by the Extractive Industries Transparency Initiative (EITI) might be useful in ensuring more full information about the amount of money invested, the location of the investments and the profitability of SWF investments. This would i) provide valuable information about the “downstream” uses of the profits garnered by extractive (and other) industries, ii) would increase the SWF-country’s financial accountability to its citizens and iii) has the potential of making the EITI’s impact more long-lasting and robust. Second, I’ve been watching the current efforts to “tag” oil with real interest. The idea is that the successes of the Kimberly Process might be replicated to diminish the vital role oil plays in funding violent conflicts. And, while I suspect that tagging money is at least as hard as tagging oil, good forensic accounting might have a real role to play in ensuring that the profits from SWFs actually benefit the citizens on whose behalf they are purportedly invested.

[Patrick Keenan is Associate Professor at the University of Illinois College of Law]

I’m grateful to the folks from VJIL and here at Opinio Juris for the chance to share a few thoughts about my article.

My aim in this article is to try to broaden the way that scholars and policymakers think about sovereign wealth funds. The standard fear about SWFs is that they open the door for states to use market tools as strategic tools. What is left out of the debate is a separate concern: that governments in control of state resources will not pay enough attention to politics. My concern is that SWFs could become just another pool of concentrated wealth that non-democratic regimes or leaders could use to solidify their political power.

Although this article is one of a series that I have written in the past couple of years that looks at the connections between human rights, business and finance, and globalization, my interest in this specific topic was sparked by a single data point that I saw somewhere (though I no longer remember where). In 2006, Nigeria received about $11 billion in official development assistance. That same year, the government of Nigeria controlled a sovereign wealth fund work more than $17 billion. It struck me as odd that a state would simultaneously accept massive amounts of development assistance and export capital. In my paper I show that Nigeria’s situation is far from unique. To be clear—this data point got me thinking about states as stewards of wealth. I do not claim that it proves conclusively anything.

Now for the paper—the standard concern about SWFs is perhaps best illustrated by an example or two. Most of us likely remember the Dubai Ports World imbroglio, when DP World, a state-owned company from the United Arab Emirates, attempted to purchase a company that would have given DP World control of the management of six ports in the United States. Many in Congress and elsewhere worried that the deal would have undermined US security by permitting the UAE to advance its strategic interests rather than just seeking profits. There was a similar outcry when China’s national oil company—CNOOC—attempted to purchase Unocal. In both instances, the argument was that the transaction would amount to giving control of the purchased company to a foreign government. Implicit in this argument is an assumption that the foreign government would put politics over profits. This argument retains some appeal despite the fact that so far, all the evidence suggests that when states operate in the markets, they do so in the pursuit of profits.

But what happens when states give too little weight to domestic political considerations? From the perspective of people in the state controlling the fund, an SWF is purely an instrument of public policy. Money invested in an SWF is money not spent or schools or roads or hospitals. When an SWF is used to transfer wealth from one generation to another, it can be a perfectly rational approach. Consider Kiribati, whose government controls as SWF worth about $400 million. Fifty years ago, Kiribati’s economy was almost entirely dependent on the revenue from one resource (guano, if you must know). Now the resource is gone but the wealth remains, thanks to sound investments.

Unfortunately, the evidence suggests that many states haven’t done as well as Kiribati. In many developing countries, concentrated wealth in the hands of the government is associated with greater repression, weaker institutions, and a lower quality of life for ordinary citizens. My article develops a theory of social arrears to define what a state owes its citizens, and to determine whether a sovereign wealth fund is being used to fulfill this obligation. I argue that a government’s unmet obligations to its citizens should be treated like unpaid debts to other creditors, which constrain the government’s investment options until those creditors are satisfied.

Well, I think it is an on-going debate, anyway!  I was asked by Det Vagts the other day for something he is working on about my (evolving) views of transnational governmental regulatory networks - the kind of networks championed by Anne-Marie Slaughter, for example, in her book A New World Order. In my review of that book, I criticized such networks as seeking to “square the circle” of global governance - global governance without actual global governance. I think that critique is correct, but I also think I should be clearer about the virtues of such networks - provided that they limit themselves in important ways. This is the quick answer about governmental networks and legitimacy.  (Apologies if this is distracting from the VJIL discussion.)

(Update: In addition to thanks to our commentators, I want to flag in particular the extended version of Euan Macdonald’s comments over at the global administrative law blog.  And thanks to David Zaring, as well, for his comments over at The Conglomerate blog.  Very interesting reactions - check them out. And thanks to Larry Solum’s Legal Theory Blog for the shout-out!)

We appreciate Professor Huang’s comments, especially his praise, of course. We probably do not differ with his view that much. We do not believe that the AML will easily become effective – its enforcement in many areas is likely to suffer setbacks, given the looming turf battles that the AML Enforcement Agency (AMLEA) is likely to have with existing economic regulators. Of course, whether the AML can be directly enforced is an important question. Having just heard FTC Chairman Kovacic talk at the AALS Meeting about how, for all antitrust agencies, and especially new ones, enforcement is a constant balancing act between building political capital with some cases and spending it on others, this is going to be an especially tricky task for the AMLEA. This challenge is probably what Professor Huang refers to in invoking the economic regulation heritage in China.

That said, the mainstay of our argument is that what Professor Huang refers to as symbolic enforcement can actually become self-enforcement. As we argue, especially with respect to local and regional monopolies, if it makes sense to move towards a cooperative equilibrium of freer internal trade, the AML could help spark the move to that equilibrium, much like free trade agreements do internationally, even in the absence of strong enforcement. And information about costs of trade restraints, again even in the absence of strong enforcement, can help create an understanding of the value of competition. If Professor Huang is correct that the AML is destined to be a transitional law, catalyzing stronger support for competition could assist a future competition law successor to the AML.

[Huang Yong is Professor of Law at the University of International Business and Economics in Beijing, China. Professor Huang is also one of the drafters of China’s Antimonopoly Law.]

On the question of whether China’s Antimonopoly Law (AML) should regulate administrative monopolies – and whether it can effectively do so – Professors Mehra and Meng have given us an affirmative answer in a unique way. They first state that, while prohibiting administrative monopolies differs from conventional antitrust law in the U.S., both the U.S. and the EU deal with similar issues – which in the U.S. would be subject to Dormant Commerce Clause analysis and which in the EU would be covered under its competition law. In contrast to the pessimistic attitudes of some scholars, Mehra and Meng content that the provisions prohibiting administrative monopolies in the AML have active significance in and of themselves. First, they believe that these provisions will be clear statements that help the central government restrain regional protectionism. Second, they propose that the adoption of a clearer conduct standard plus the possibility of improved information about compliance could yield a domestic cooperative equilibrium like that of the international trade system Third, they believe that the AML can contribute to the development of a “competition law” culture in China even in the absence of strong enforcement mechanisms.

Mehra and Meng deserve praise for analyzing the AML in the context of China’s social and economic reality and identified its possible positive function, in contrast to the bulk of academic writing. However, in contrast to mature market-oriented countries, China is a transition economy with a strong tradition of government intervention in the economy. My view is that the AML is destined to be a transitional law and will suffer a lot of limitations. These limitations will ensure that regulation of administrative monopolies’ legal liabilities in AML will mainly be symbolic. From here, the task for China’s AML is first to cultivate and perfect market mechanisms, and then to safeguard market efficiency.

[Salil Mehra is Professor of Law at Temple University Beasley School of Law and Meng Yanbei is Associate Professor at Renmin (People’s) University in Beijing, China]

Thanks to the Virginia Journal of International Law and Opinio Juris for hosting this discussion. Since this is our first time doing a blog posting for an article, apologies for any failure we may have to strike an appropriately bloggy tone.

Our article sets forth a somewhat contrarian take on China’s newly applicable, and first comprehensive, competition law, the Antimonopoly Law (AML). During the decade-plus of the AML’s drafting, many outside and internal observers were quit pessimistic about the law’s likely impact. First, some observers questioned the substantive provisions of the act. In particular, provisions aimed at so-called administrative – that is, state-bolstered – monopolies seemed an ill fit in a general antitrust law. See Mark Williams, Competition Policy and Law in China, Hong Kong and Taiwan. Additionally, many held doubts about the practical enforceability of the AML. After all, despite its stunning economic growth, China remains in many respects a transitional economy with a significant heritage of state intervention in the economy. To create an enforceable competition law in such an environment requires facing a tough challenge: how to regulate the regulators?

We provide some reasons for optimism about the AML. We believe that to view the AML as merely “China’s Sherman Act” is to take too narrow a view. The AML also addresses inefficiencies that, in the U.S. would be subject not to antitrust law, but to Dormant Commerce Clause analysis – the kind of state action that is also covered under EU competition law. In particular, a significant source of inefficiency in China stems from regional and local government administrative monopolies that in some industries effectively balkanize an otherwise huge market. There are a couple of reasons to believe that the AML could reduce these inefficiencies. First, there is the possibility that central government enforcement will be able to rein in regionally-created monopolies. But also, drawing on the repeated prisoner’s dilemma model of international trade among sovereign states under such agreements as the GATT and The Treaty Establishing the European Community, the adoption of a clearer conduct standard plus the possibility of improved information about compliance with it could yield a cooperative equilibrium even in the absence of binding enforcement mechanisms. Additionally, on a more abstract level, even without strong enforcement mechanisms, AML institutions could help spark a dialectic about the benefits of competition out of which a “competition law” culture could develop. This is particularly important given the low level of consciousness in the business community about what competition law did exist in China prior to the AML.

That is not to say that we believe that the AML is perfect; it is far from a panacea. However, we would not pronounce it doomed in its infancy.

Economics Professor William Easterly of NYU has launched “Aid Watch,” a new blog that is “just asking that aid benefit the poor.”  Check out Easterly’s inaugural post in which he takes on World Bank President Robert Zoelleck’s recent request for a stimulus package for the world.  Whether you agree or disagree with Easterly’s “tough love” approach to international aid and aid agencies, it looks like a blog to watch.   Welcome to the blogosphere!

I am very grateful to Oliver Gerstenberg for commenting on my paper. As always, Oliver’s illuminating comments go to the heart of the matter. His defense of a minimalist approach to the ECJ offers an alternative to the presumably “maximalist” proposal I defend in my article. I accept this label for the purpose of our exchange.

At one level, Oliver worries about the implications of a “politicized” Court whose members disagree sharply and publicly about matters of great consequence to the future of Europe and its citizens. He argues that the “discursive turn” in the Court’s judicial style, which I describe and defend in my paper, could reopen debates about supremacy or direct effect, or even fracture the Court along the lines of the Berlin Wall. But there is more to Oliver’s argument. He suggests an alternative future of a Court engaged in a jurisprudence of “mutual monitoring and peer-review” which treats with respect the normative pluralism that presently structures the European legal space. My article sketches out a few possible answers to the first set of concerns and I will confine my discussion here, for reasons of space, to the broader picture. Specifically, I submit that the “maximalist” paradigm is more likely than the minimalist alternative to preserve and develop constitutional pluralism and institutional experimentation in the next stages of the EU’s existence.

It might be helpful to brush aside from the outset what I will call “contrived minimalism”. Recall the Court’s current practice of delivering unitary judgments in matters of fundamental importance to the Union. These judgments are minimalist, oddly qualified by the occasional use of teleological interpretation, insofar as the members of the Court must compromise by seeking the lowest common denominator of their respective positions. I don’t believe this is the minimalism that Oliver has in mind.

There is, however, a second version of minimalism that recommends the Court to refrain from assertive – broad, final, entrenched – pronouncements in matters of fundamental importance to the Union. This second version of minimalism can be defended on grounds of principle and/or prudence.

On grounds of (democratic) principle, Oliver suggests that the Court’s discursive turn will raise some familiar difficulties regarding the legitimacy of judicial lawmaking. I won’t dwell here on the legitimacy that Art 220 confers on the Court. Rather, I want to question the assumption implicit in the argument from democratic legitimacy that the discursive turn enhances by necessity the Court’s assertiveness. One can easily imagine that it would have just the opposite effect. Reasoned debate among the members of the Court might discipline its pronouncements and lead to more cautious, and better reasoned, decisions. This new form of reason giving would renegotiate the terms of the Court’s authority in relation to national courts and eo ipso to national legal orders. It helps to remember that the plurality of legal orders, which Oliver rightly identifies as a defining feature of the current EU legal system, is not so much the doing of the ECJ but rather the outcome of how the apex courts of member states reacted to the ECJ’s claim about the supremacy of European law. The discursive turn can recast the judicial center in a way that conceivably will allow for open normative exchanges among Europe’s legal orders. This seems to me to be just the opposite of the judicial centralization that Oliver mentions in his comments. The judicial stage could now become a setting for normative reflection on Europe’s rich and diverse legal traditions.

There may also be prudential reasons for resisting the “politicization” of the ECJ on grounds of judicial minimalism. Perhaps ascribing to the Court greater substantive and discursive influence over the Europe public sphere will shrink the political space for institutional innovation and ultimately endanger Europe’s experiment in governance. It is perfectly plausible to adopt a minimalist stance towards the ECJ in order to preserve that political space. In my view, the difficulty with this approach is that the Union’s revitalization is unlikely to originate from within that political sphere, at least at this point in time. Innovation and experimentation should be the outcome of robust debates; in reality, they have replaced such debates. While a jurisprudence of “mutual monitoring and peer-review” could conceivably have some appeal against a different political and social background, my paper argues that this is the moment in time for a different kind of court and a different type of jurisprudence. The discursive turn could make the Court a normative forum where Europe’s rich legal traditions can come into dialogue in the spirit of pluralism and mutual recognition.

[Dr. Oliver Gerstenberg is Reader in Law at the University of Leeds. Dr. Gerstenberg is one of the leading scholars in this field.]

Would the European Court of Justice (ECJ), as Vlad Perju suggests, benefit from a “discursive turn” (338); brought about by “allow[ing] its members to enter separate opinions” (309); in an effort to “politicize” EU law (327)—with the long-term objective of “enhanc[ing] the citizenry’s sense of a shared political identity” (329)?

Consider some background: The ECJ is primarily an economic court. Yet its role has changed dramatically. Drawing “inspiration” from the various “constitutional traditions common to the Member States” (as the Court puts it), the Court has begun to develop a jurisprudence of “general principles of law,” in order to redeem the EU’s self-conception as a “community based on the rule of law.” Those principles—developed by the Court sua sponte—have enabled the Court to incorporate, within “the structure and aims of the Community,” the substance of the European Convention on Human Rights (ECHR), as well as fundamental rights protected by national constitutions. The Court must decide crucial social and economic issues, and in doing so “balance” competing fundamental values. Yet the praetorian reliance (under Art. 220 EC) on general principles of law touches upon a fundamental problem posed by the rule of law: the legitimacy of judicial “lawmaking.” Domestic constitutional courts may reassert their jurisdiction either in the case of a “general decline” of constitutional guarantees provided by EC law, or in the case of a competence-transgressive ECJ-jurisprudence that “discovers”—and imposes on Member States—general principles without due authorization.

In response to Vlad, I wish to suggest that, rather than “politicizing” the Court (in order to assuage its legitimacy-problem), there is something important to be said for a more minimalist, indeed, “weak” ECJ. The democratic benefits of allowing judges to enter dissenting opinions seem uncertain in the EU-context. You do not want a “supreme” ECJ, which sharply divides over ever more, and ever more controversial, but hugely consequential, constitutional-legal issues (e.g. the “true” balance between market-freedoms and social rights) along, say, national lines or those of “old Europe” versus “new Europe.” You may not want to jeopardize direct effect and primacy through narrowly split decisions. Contrary to the assumption which Vlad seems to make (and which he seems to share with large parts of the literature and at least one of the current AGs), it remains a fair and open question whether the ECJ should best be thought of as a “constitutional court” (with all the implications regarding dissenting opinions)—as opposed to a more minimalist, if not more court-skeptical, view of the ECJ.

To illustrate this point, consider an important parallel in contemporary US debates which exploit the paradox that “weak” forms of judicial review and “weak remedies” may actually allow for stronger social welfare rights (Tushnet) and that by taking the constitution away from the courts you enhance democratic choice. In today’s Europe, different legal orders—ranging from State law, EU law, the ECHR, to International law—coexist, often in relation to the same issues, and there is no hierarchy of legal authority, nor a final decider. Divergence of constitutional traditions across the EU commands deference by the ECJ to those traditions and choices which inform it (not unlike the “margin of appreciation” doctrine of the ECHR), “as long as” those traditions and choices, in turn, respect coordinate European commitments to transparency, reasonableness and fairness. National constitutional courts are required to respect the praetorian development of those commitments by the ECJ, “as long as”—under the German Solange II-doctrine—the level of constitutional protection is “respectworthy” from the standpoint of the plural domestic traditions as “sources of inspiration.” In that interactive process, the nature of legal doctrine itself shifts from the substance of conflicts to a jurisprudence of mutual monitoring and peer-review.

Outright “politicization,” as Vlad suggests (and, concomittantly, ever further constitutionalization and judicial centralization), risks to shift the balance and to arrest this interplay between legal orders which is non-hierarchical and coordinated through the mutual deployment (and reconsideration) of the Solange II-formula.

That said, I hasten to add that participants to this important debate could hardly do better than study Vlad’s immensely thoughtful, suggestive, and characteristically brilliant paper.

[Vlad Perju is Assistant Professor of Law at Boston College Law School]

I thank Opinio Juris and the editors of the Virginia Journal of International Law for providing this forum to discuss my recent article on Reason and Authority in the European Court of Justice. I am also grateful to Oliver Gerstenberg for kindly agreeing to comment.

I start this project with the observation that for an institution hailed as “the most powerful and influential supranational court in world history” (Alec Stone Sweet, Governing with Judges), the European Court of Justice Court has thus far played a comparatively limited role in the plans to reform the European Union in the early twenty-first century. I argue in this Article that the ECJ can contribute to the development of the European citizenry’s political identity by “politicizing” its judicial style, that is, by bringing into the open the legal debate about the choice of conflicting methods and values that informs its judgments. The most effective means to that end is to allow its members to enter separate opinions. Dispensing with the single, collegiate judgment would enable the Court to “renegotiate” its relationship with the European public. From its newly adjusted position, the Court could play an important role in the formation, as much as it is possible and desirable, of a shared political consciousness among the European citizenry. Far from being a mere technicality, multiple judgments are a bold, but necessary, step in the EU’s ongoing experiment in governance…

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles recently published by VJIL in Vol. 49:2, available here.

On Tuesday, Professor Vlad Perju of the Boston College Law School will discuss his article Reason and Authority in the European Court of Justice.

On Wednesday, Professor Salil Mehra of Temple University and Professor Meng Yanbei of Renmin (People’s) University in Beijing, China will discuss their article Against Antitrust Functionalism: Reconsidering China’s Antimonopoly Law.

On Thursday, Professor Patrick Keenan of the University of Illinois College of Law will discuss his article Sovereign Wealth Funds and Social Arrears: Should Debts to Citizens be Treated Differently than Debts to Other Creditors.

I am unclear as to one thing in the Executive Order issued by President Obama regarding interrogation practices. The text of the Executive Order is here.  It provides that the CIA must conform to the Army manual with respect to interrogation techniques, but says (bold-face added):

(b)  Interrogation Techniques and Interrogation-Related Treatment.  Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual).  Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes.  Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense.  

I am unclear why the language “any armed conflict” is included.  Why would the Executive Order not direct the CIA to conform to such techniques limited to the Army manual under all circumstances?

NPR’s Fresh Air with Terry Gross has a great interview with P.W. Singer of Brookings (and coordinator of the Obama campaign’s Defense Policy Task Force) about his new book concerning battlefield robots, Wired for War.  Ken and others have written extensively about the use of battlefield robots on this blog and elsewhere, so I won’t re-hash the various legal, moral, and strategic issues here.  (But do take a moment to look at this creepy video of a four legged robot.) Instead, I want to highlight a few interesting points from the Singer interview.

What struck me the most was Singer’s answer to a question as to whether there is any unifying theme to his three books, on of which examines the use of child soldiers, a second the rise of private military contractors, and the most recent on battlefield robots.  His response was essentially that he is concerned about how our assumptions of “what war is” are no longer accurate. In previous eras, if the U.S. was going to enter into prolonged military conflict, we had a declaration of war. We don’t do that anymore.  Our image of the soldier was a uniformed man (typically) fighting on behalf of our country against other uniformed men (typically) in the armed forces of other states. But, as his PMC book has shown, the Bush Administration has actually cut back on what the government handles in combat zones and increasingly outsourced this to private companies. So rather than the citizens of a nation thinking about the possibility of a draft if we engage in war, we maintain an all volunteer force and contract-out for the rest.

Now we are not even using people, but rather machines (some remotely controlled, others actually autonomous) in a variety of missions. We currently have about 5,000 aerial drones in Iraq (some armed, others not) and something like 12,000 ground robots (we started the war with none) that do things ranging from shooting at incoming missiles and mortar fire (!) to sweeping for IEDs (using a robot based on the household cleaning Roomba, believe it or not).  If we are not even sending people to war but machines, how will this affect our decision to go to war?

And, finally, he notes that the people that we are fighting are less and less uniformed soldiers and more and more irregular fighters, including children.

Altogether, he explains that his concern is that the traditional barriers to using force (formal declarations of war, political checks over concerns of sending large numbers of people off to fight, etc.) are being lowered to the point where they are essentially just lying on the ground.  He is worried about what this implies for our proclivity to use military force in the future. My summary doesn’t do his argument justice, you really should listen to the interview.

He also notes that, unlike nuclear weapons, the use of robotics do not require a large industrial base.  It is essentially “open source” technology with commodified components. While there are U.S. soldiers sitting in Nevada remote controlling aerial drones on fire missions, there are people around the world logging into jihadi websites that use webcams in Iraqi streets and allow remote detonation via the Internet of IEDs near those webcams.  Just wait for a target of opportunity. He also points out that the Israel-Hezbollah conflict in Lebanon was perhaps the first conflict where both sides (a state and, importantly a non-state actor) fielded battlefield robots.

However, the most chilling section for me came in the second half of the interview when he described what some people call “oops moments” and the reaction of some of the scientists to these moments. ”Oops moments” are when, due to software glitches, heavily armed robots do things like set their sights on their own soldiers (in one case killing eleven 9 South African soldiers) or (in another case where the robot actually did not have live ammo) on a group of dignitaries who were watching a demonstration. Singer described the troubling disconnect that some of the scientists whom he interviewed had in regards to whether in light of this there are any legal or ethical issues in using battlefield robots. One scientist argues that he could not think of any such legal or ethical issues. When pressed about what if a robot consistently kills soldiers on its own side or innocent civilians. he answered: “That’s not an ethical issue; that’s a product recall issue.”

(Sounds like a Ford Motor Company memo concerning the Pinto. I half expected Singer to say that the scientist then said: “Praise your new robotic overlords you glorified monkeys! Praise them!” But, no.)

A troubling look at what may be the future of warfare. I plan on reading the book.

And my apologies to these guys for the title of this post.

Yesterday Barack Obama signed an Executive Order directing an immediate review of al-Marri’s status. “The Review shall expeditiously determine the disposition options with respect to al-Marri and shall pursue such disposition as is appropriate.”

So what should the Supreme Court do with the al-Marri case now? As I noted earlier this month, Obama essentially has the choice to either detain, deport, and prosecute al-Marri. Each is perilous and fraught with difficulty. I certainly don’t think this Executive Order renders the case moot. Presumably his status remains unchanged during the review period.

But perhaps what this Executive Order does is buy time. It would be prudent for the Supreme Court to either dismiss the case as improvidently granted or at a minimum provide the Department of Justice an extension of the February 20 (with a requested extension to March 23) briefing deadline. I can’t imagine the case will go full-steam ahead in light of this development.

I have a new paper up on SSRN, appearing shortly in the Wayne Law Review, The Assumptions Behind the Assumptions in the War on Terror: Risk Assessment as an Example of Foundational Disagreement in Counterterrorism Policy.  It was, by the way, super nice of Larry Solum to post a reference to this paper on his Very Great Legal Theory Blog.  Even nicer of him to call it ‘highly recommended’! Alas, I’m not so sure I highly recommend it, though. I picked an easy target and then scattered shots all over the place. There are some important things in there, but I don’t think it’s the best organized or written thing I’ve done.  But I think the topic is hugely important, and I plan to pursue it in a series of articles or some kind of venue.

Just before President Clinton left office and on the last day it was open for signature, the United States signed the Rome Statute of the International Criminal Court.  The Bush Administration would later, through John Bolton, inform the United Nations that the United States did not intend to ratify the treaty, thereby removing any obligations associated with the U.S. signature (for reasons too long to elaborate here, I reject the idea that Bolton “unsigned” the Rome Statute, notwithstanding the colloquial popularity of that term). 

The Bush Administration undertook a similar, last-minute treaty signing this past Monday, when John Bellinger signed the Hague Choice of Courts Convention for the United States.  I doubt, however, that the move will prove any where near as controversial, nor do I expect the Obama Administration to walk back from this signature any time soon (whether they prioritize its ratification is a different question).  The Hague Choice of Courts Convention essentially seeks to replicate for covered commercial contracts a regime of judgment recognition in cases where parties exclusively agreed on a particular court for their disputes, akin to the recognition of arbitral awards that occurs under the New York Convention.  As Ronald Brand has explained, the Convention sets out three basic rules:

1) the court chosen by the parties in an exclusive choice of court agreement has jurisdiction;

2) if an exclusive choice of court agreement exists, a court not chosen by the parties does not have jurisdiction, and must decline to hear the case; and

3) a judgment resulting from jurisdiction exercised in accordance with an exclusive choice of court agreement must be recognized and enforced in the courts of other Contracting States (other countries that are parties to the Convention).

If the U.S. joins the treaty, there will be some interesting questions about how the Convention will actually operate (as my colleague William Woodward notes differing U.S. state policies on franchise and mass market contracts may make U.S. compliance difficult absent a declaration under Article 21 that such contracts are excluded from the Convention’s coverage). 

Of course, this assumes that the treaty will come into force at all.  Under Article 31, only two states need to consent for that to happen.  That’s as low a hurdle as one can have for a multilateral treaty.  But today, nearly 3 and a half years after the treaty’s conclusion, Mexico is the only state to indicate its consent to be bound (via accession), and the United States is actually the treaty’s first signatory.  Unlike the ICC, therefore, where U.S. signature was a reluctant (and temporary) effort to recognize a growing international consensus favoring the emergence of that international tribunal, here the United States seems to be trying to lead other states into creating this new recognition of judgments regime.  Whether this move is successful depends on a variety of factors, including the Obama Administration’s views on the treaty and the reasons other states have withheld their support so far (e.g., waiting on the United States or other major players to make a move, a lack of enthusiasm for a legal system of enforcement where comity often already frequently results in foreign judgment enforcement, or substantive objections to the treaty’s provisions).  In any case, true success for the Hague Choice of Courts Convention will require the consent of many more states beyond the United States and Mexico (although that would at least give contractual relations for U.S.-Mexico businesses a different spin).  By way of contrast, the New York Convention has 144 contracting parties.  So, although it won’t have the front-page attention of GTMO’s closing or even what stance the new Administration takes on the ICC, it’ll be interesting to see whether the United States proceeds to ratify this latest Hague Convention or if U.S. signature will serve as a precursor for additional states to sign or join the treaty.  Otherwise, the Hague Choice of Courts Convention may find itself joining the long list of unperfected treaties.

I’m not familiar with these things, but it strikes me as a bit odd that the Obama Administration is leaking draft versions of its executive order on Guantanamo.  Just release it, already! You are the President now!  In any event, the draft order does take a fairly hard line on closing Gitmo, but it leaves itself plenty of wiggle room.  At least we know the new prez has good lawyers. 

 Sec. 3. Closure of Detention Facilities at Guantánamo

. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.

 

 

Obama is pre-committing himself to closing Guantanamo by next January.  But that is the only thing that is really different about this policy from Bush’s, since Bush was also sending detainees to home countries or third countries.  Besides, it is not Guantanamo itself that is what people object to, but the detention of individuals without granting them rights under international or constitutional law.  And nothing in this order seems to guarantee that this will change since all it says is that individuals could be transferred to “another United States detention facility.” This could mean Afghanistan, for instance.  Only a pledge to transfer them to a facility in the territory of the United States would guarantee them U.S. constitutional rights. And even then, the order seems to suggest this transfer to U.S. territory would only happen if Congress gives some legislative authority to detain without trial within the U.S. The individuals at Guantanamo and in U.S. custody already enjoy Common Article 3 protections under international law, after the 2006 Hamdan decision.  So the order isn’t really changing that much here. Yet.

As Columbia lawprof Matt Waxman notes here, there are no easy solutions to closing Guantanamo, especially if the Obama administration wants to continue to prosecute the war on terrorism. And even closing Gitmo will not resolve the basic problem of what to do with the most dangerous detainees. Obama is giving himself a year to figure this out.

Philippe Sands and Dahlia Lithwick have kindly responded to my post about CAT and the prosecution of torture suspects.  Here is their response:

We don’t believe we are in disagreement on the approach to the obligation under CAT, under Articles 7(1) and (2). The obligation is to “submit the case to its competent authorities for the purpose of prosecution”. What happens thereafter is a matter for the prosecutor, who may decide that, in accordance with applicable standards (”authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State”) and the facts of the case, including the prospects for a successful prosecution, that proceeding to actual prosecution is not justified.

Weeks of hearings on Pinochet in the House of Lords and other English courts, in which Arts 5 and 7 were parsed to death, confirm that this is the proper approach to Article 7.

What does this mean for the US right now? In the face of rather compelling evidence that torture occurred — not least the statement last week by Susan Crawford — it appears that the matter should be taken up by a prosecutor…

Although a DC resident, I couldn’t persuade myself or my wife to brave the crowds or the cold to attend the inauguration yesterday, and instead watched it with a group of friends on hdtv and had a jolly fun party.  Leaving aside Chief Justice Roberts fumbling the oath (see last graf of this post on President Obama retaking the oath on January 21), some of our non-American readers might be interested about the legal source and text of the oath itself.  It is significantly different from the oaths of office of many other countries in the world.

The presidential oath of office is found in the Constitution, Article II, Section 1:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States.

The Cable has a short post on Dean Anne-Marie Slaughter taking a leave from Princeton to become the head of the State Department’s Policy Planning Staff (a post previously held by George Kennan, Paul Nitze and, more recently, by Tony Lake, Dennis Ross, Richard Haass, and Stephen Krasner). Anne-Marie, as many readers of this blog would know, is a prominent international lawyer and former president of the American Society of International Law.  It will be interesting to see whether her expertise in international law and in cross-border regulatory networks will open up new approaches to thinking about foreign policy at State.  For those who want to take a look at some of her recent work, the post at the Cable also links to her new article in the current issue of Foreign Affairs.

I was also very happy to see that frequent Opinio Juris commentor and guest blogger (and regular blogger at Balkinization) Marty Lederman has become Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel. Undoing the handiwork of John Yoo, I assume.

Finally, in a follow-up to my earlier post on Suzanne Nossel’s formulation of “smart power,” I note this piece by Hendrik Hertzberg in the new issue of the New Yorker.

No “citizen of the world” talk today.  I was a little surprised at the fairly pronounced us/them premise of the speech, a worldview still defined by states.  And no nods to international institutions, even as a general proposition.  Of course Obama is the President of the United States (and most Americans certainly expect the national framing), but if I were a non-American watching today, I might have expected a little less distancing, some greater acknowledgment of bonds transcending boundaries, especially in the face of a clearly global crisis clearly requiring a global solution.  The speech was hardly bold in this respect.  The one passage pointing to something different:

And because we have tasted the bitter swill of civil war and segregation and emerged from that dark chapter stronger and more united, we cannot help but believe that the old hatreds shall someday pass; that the lines of tribe shall soon dissolve; that as the world grows smaller, our common humanity shall reveal itself; and that America must play its role in ushering in a new era of peace.

The “lines of tribe” presumably being those of nations.

Great inauguration speech by President Obama. In terms of foreign policy here are my quick thoughts. First, the speech was striking for President Obama’s appeal to soft power.

“Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint. We are the keepers of this legacy. Guided by these principles once more, we can meet those new threats that demand even greater effort — even greater cooperation and understanding between nations.”

President Bush has been extremely gracious to Barack Obama during the transition period and President Obama has returned the favor. But there was this one paragraph in the speech that was a significant rebuke to the Bush Administration:

“As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience’s sake. And so to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: Know that America is a friend of each nation and every man, woman and child who seeks a future of peace and dignity, and that we are ready to lead once more.”

Not much in the speech in terms of saber rattling. But there was this one threat of hard power directed to terrorists….

The Obama Administration has taken over the White House, and with it the www.whitehouse.gov website.  Consistent with the earlier campaign’s internet-focus, visitors will find a front-page link to a new blog, The White House Blog.  Macon Phillips, the Director of New Media for the White House, already has a post up, Change has come to WhiteHouse.Gov, which introduces the new blog and other communications-related aspects of the new Obama Administration.  Government-run blogs have proved notoriously difficult to operate.  It’s really hard to thread the line between recycling press releases – which I’m hard pressed to see as a blog at all — versus true off-the-cuff, instant commentary, which often runs counter to a press office’s primary goal–staying on-message.  Still, I’d like to welcome the White House Blog to the blogosphere.  I look forward to seeing how they deal with this challenge and the content they provide in the weeks and months ahead.

There is a lively debate going on in the blogosphere about the legal impact of Eric Holder’s statement that waterboarding is torture and Susan Crawford’s conclusion that Mohammed al-Qahtani was tortured while in custody at Guantanamo Bay.  Does Holder’s statement and Crawford’s conclusion require the US to prosecute the interrogators who used waterboarding and the Bush administration officials who approved its use?  Glenn Greenwald believes that they do, as do Dahlia Lithwick and Philippe Sands, writing together.  Eric Posner, by contrast, insists that they do not.

I firmly believe that anyone involved in waterboarding should be criminally prosecuted.  That said, I think Posner has the better of the legal argument.  Greenwald, Lithwick, and Sands base their position on Article 7(1) of the Convention Against Torture:

The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

Article 7(1) clearly requires the US to submit the case of anyone suspected of being responsible for waterboarding to the competent authorities “for the purpose of prosecution.”  That does not mean, however, that the “competent authorities” — the Department of Justice — must actually prosecute the suspects…

In the comments to my post below on the BBC story, Mark C has kindly provided a link to the “formal request” allegedly submitted on behalf of “millions” of Sudanese who oppose arresting Bashir.  (The request also opposes arrest warrants for the rebel leaders, although perfunctorily — protecting Bashir is its primary objective.)  I hope to address the request’s numerous factual and legal inaccuracies in a later post.  For now, I simply want to note that the request’s insistence that arresting Bashir would damage the peace process in Sudan is legally irrelevant to the OTP’s request for an arrest warrant.  Article 58 of the Rome Statute makes very clear that the Pre-Trial Chamber cannot consider issues of peace vs. justice when it decides whether to issue a warrant: “the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that… (a) [t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.”  That’s it: if the reasonable grounds exist, the warrant must be issued.  End of story.

To be sure, the request half-heartedly criticizes OTP’s insistence that there are reasonable grounds to believe that Bashir is responsible for genocide…

Barclays Bank v. Franchise Tax Board (1994) was a case that some of us (those who started teaching in the mid 90s) saw as a breakthrough case on foreign relations federalism, a sharp turn from Zschernig and the ‘one voice’ line of foreign commerce clause cases. As Jack Goldsmith wrote in 1999, for instance, “Barclays Bank marks a return to a pre-Sabbatino, pre-Zschernig approach to state activities that cause foreign relations controversy.”

It didn’t turn out that way. Even as they shied away from expressly confirming Zschernig, Crosby and Garamendi work very much from one-voice premises. The latter particularly so, insofar as it takes executive branch representations at face value in determining whether a state-level measure interferes with federal foreign policymaking. For those of us looking for some new thinking in the area, there wasn’t much to these cases. Federal supremacy persisted on the old model.

But Medellin may yet breath some life into Barclays. In confronting the Bush memo ordering that state courts give effect to the Avena decision, the Court played heavily to the President’s incapacity to make a treaty self-executing without congressional participation. This parallels a similar posture in Barclays Bank, where the Court found congressional action necessary to preempt the state tax challenged there under the dormant foreign affairs power. (”[W]e leave it to Congress–whose voice, in this area, is the Nation’s–to evaluate whether the national interest is best served by tax uniformity, or state autonomy.”)  Medellin of course also involved a question of foreign relations federalism, one susceptible to a Zschernig analysis.  See Kirgis, 92 AJIL 704.  Although the Medellin majority cited neither Zschernig nor Barclays it did take a big swipe at Garamendi, suggesting the latter’s limitation to the context of foreign claims settlement only.

Combining with this aspect of Medellin in a possibly pincer-like fashion is Congress’s new-found willingness to validate state and local activity, as manifested in the Sudan Accountbility and Divestment Act of 2007.  That measure (which sets out the “sense of” Congress that the US government “should support the decision of any State or local government to divest from . . . a person that the State or local government determines poses a financial or reputational risk”) might steer the Court away from the sort of hair-trigger preemption threshold it laid out in Crosby and Garamendi. And so, back to Barclays Bank.

Regular readers no doubt know that I am obsessed with the media’s seemingly congenital inability to grasp the law and politics of the ICC.  My new favorite comes via the BBC, in an article about the impending arrest warrant for Bashir:

Two Sudanese groups have formally requested the International Criminal Court (ICC) not to issue an arrest for President Omar al-Bashir.

He is accused of responsibility for war crimes and crimes against humanity during the conflict in Darfur.

Experts warn that the motion filed could lead to a delay in the judges’ decision on whether to issue a warrant.

[snip]

But some see the two groups - the Sudan Workers Trade Unions Federation and the recently-formed Sudan International Defence Group - as government proxies.

Who are these ICC “experts” who believe the “formal request” will delay the proceedings against Bashir?  Your guess is as good as mine — the article doesn’t identify any expert by name.  Not that we should be surprised: no one who actually was expert regarding the ICC would offer such a ridiculous warning.  First, “formal request” is a misnomer in itself, because nothing in the Rome Statute permits NGOs to ask the Pre-Trial Chamber to defer a decision on an arrest warrant.  (They are entitled, by contrast, to submit information to the OTP concerning possible crimes within the jurisdiction of the Court.)  Second, why would the Pre-Trial Chamber take a “formal request” by two NGOs — NGOs that might well be GOs, as the article itself acknowledges — more seriously than official statements by China, the African Union, and the Arab League opposing Bashir’s arrest?  Does that make any sense at all?

I expect such tripe from lesser news agencies.  The BBC should do better.

ICC silliness doesn’t just affect the media.  States and NGOs suffer the malady, as well.  Case in point: the recent, repeated calls for the ICC to prosecute Israel for war crimes allegedly committed in Gaza.

First up, Bolivia: “The Andean state says it is intended to make regional allies take a unified stance against “the Israeli political and military leaders responsible for the offensive on the Gaza Strip” and make it to stand trial at the international body in the Hague, said Sacha Llorenti, whose portfolio covers civil society.  Moves to begin the legal process will begin “probably next week,” Bolivia’s deputy justice and human rights minister Wilfredo Chavez told journalists during the visit to Geneva, AFP reported on Friday.”

Next up, the Asian Parliamentary Association: “The Asian Parliamentary Association (APA) will haul Israel to the International Criminal Court (ICC) for war crimes, said APA president Agung Laksono on Thursday. He said the move was in line with the resolution at an emergency meeting of the Parliamentary Union of the Organisation of the Islamic Conference (PUIC) member states in Istanbul, Turkey on wednesday. ‘Speakers of Asian parliaments will bring the guilty to the ICC as war criminals’, said Agung, Speaker of the Indonesia parliament, as reported by Antara, the Indonesian news agency.”

There is, of course, one small problem with this idea: even if Israel has committed war crimes in Gaza — and I certainly believe it has — the ICC does not have jurisdiction over them.  As Moreno-Ocampo quickly pointed out, Israel is not a party to the Rome Statute.  To be sure, Israel could accept the ICC’s jurisdiction ad hoc or the Security Council could refer the situation in Gaza to the Court (as suggested by the International Federation for Human Rights).  But we all know how likely those scenarios are.

Seriously, guys, read the Rome Statute.  You can find it on-line here.

It’s an absurd question, of course, to ask why the environment is more important than human rights. But it’s actually true: protecting, say, endangered sea turtles is far more important than protecting against cruel, inhuman and degrading treatment of individuals. At least that is the conclusion if one is examining the question from an international trade perspective.

The general exceptions of the WTO provide for various exceptions to the core rules against non-discrimination, quotas, import bans and the like. But not all the exceptions are the same, and WTO jurisprudence has devolved to the absurd point that the environment is more important than human rights.

One of the exceptions, Article XX(g), provides that nothing in the WTO obligations shall prevent Member States from adopting or enforcing measures “relating to the conservation of exhaustible natural resources….” This means that any measure that relates to a legitimate policy of conserving natural resources can invoke Article XX(g) and be exempt from WTO obligations. Thus, the United States could restrict the importation of products that cause air pollution, threaten global warming, or diminish the population of endangered species. Of course, it must implement these measures in a non-discriminatory manner and must impose similar obligations on domestic products. But subject to these limitations, any measure that relates to conservation of exhaustible natural resources is acceptable.

Not so with human rights. Article XX(b) provides that nothing in the WTO obligations shall prevent Member States from adopting or enforcing measures “necessary to protect human … life or health….” The requirement that the measure be “necessary” rather than “relate to” has been interpreted to impose an extremely high hurdle for Member States seeking to promote concerns such as human rights. Essentially, for a measure to be “necessary” a Member State must show that (1) no measures consistent with the WTO could have been employed; and (2) no less trade restrictive measures inconsistent with the WTO could have been employed. In other words, when it comes to human rights, alternative measures that are not trade distorting must first be employed.

So you can ban the importation of tuna if it harms dolphins, but not because the fishermen who caught the tuna were employed in a manner inconsistent with core ILO labor standards. As a policy matter it doesn’t make any sense, but that’s the rule.

Earlier today, the SFRC voted 16-1 in favor of Senator Hillary Clinton’s nomination to be the next U.S. Secretary of State.   That result is not surprising, nor was her generally well-regarded performance before the SFRC on Tuesday.  Indeed, it’s worth remembering on the second point that Clinton worked not only with transition officials and her own advisers to get ready, but also had numerous career-State Department officers at her disposal.  State officials often work to give the nominee a hand with the details and the range of options at stake in lesser-known foreign affairs issues.  Still, I value these hearings not simply because they give a sense of what the nominee will be like as Secretary, but also for the signals the hearings send about what topics are on the rise in terms of priority and attention for both the State Department and the SFRC.

To that end, I was interested to see what treaties came up during Tuesday’s hearing.  Three in particular caught my attention:  (1) START extension talks; (2) the CTBT; and (3) UNCLOS.

Newly-minted SFRC chair John Kerry opened up the hearing with a mention of the need to reengage on the START treaty, which, absent a negotiated extension, will expire at the end of the year.  This need for attention to START was echoed by Senator Lugar as well as Clinton herself later in the hearing.  In introducing the START issue, Sen. Kerry emphasized that “[w]e should also lay the groundwork for ratification of the Comprehensive Test Ban Treaty.”  Interestingly, Senator Lugar did not touch that topic when he spoke out in favor of extending START.  Given the CTBT’s rejection by the full Senate in 1999 (after a positive SFRC vote), I wonder if Senator Lugar’s silence signals anything with respect to continued Republican resistance to that treaty?  For her part, Senator Clinton echoed Senator Kerry’s point on the need to reengage with the CTBT:

The Nonproliferation Treaty is the cornerstone of the nonproliferation regime, and the United States must exercise leadership needed to shore it up. So we will seek agreements with Russia to secure further reductions in weapons under START, we will work with this committee and the Senate toward ratification of the Comprehensive Test Ban Treaty, and we will dedicate efforts to revive negotiations on a verifiable Fissile Material Cutoff Treaty.

Finally, the hearing sounded a very positive note on UNCLOS.  Here’s the exchange between Senator Murkowski and Senator Clinton, along with a later injection on the topic by Senator Kerry:

MURKOWSKI: Will ratification of the Law of the Sea Treaty be a priority for you?

CLINTON: Yes, it will be, and it will be because it is long overdue, Senator. The Law of the Sea Treaty is supported by the Joint Chiefs of Staff, environmental, energy, and business interests. I have spoken with some of our — our naval leaders, and they consider themselves to be somewhat disadvantaged by our not having become a party to the Law of the Sea.

Our industrial interests, particularly with seabed mining, just shut up. I mean, there’s nothing that they can do because there’s no protocol that they can feel comfortable that gives them the opportunity to pursue commercial interests. So, for all of those reasons — and I mention it in conjunction with the Arctic because I think they go hand in hand — we’ve got to figure out where our boundaries are. You know, if people start drilling in areas that are now ice free most of the year, and we don’t know where they can and can’t drill or whether we can, we’re going to be disadvantaged. So I think that you will have a very receptive audience in our State Department and in our administration. . . .

KERRY: Thank you, Senator Murkowski.

Let me just say to you and to others interested that we are already — I have talked to Senator Lugar about this, and I’ve talked to Senator Clinton about it. We will be — we are now laying the groundwork for and expect to try to take up the Law of the Sea Treaty. So that will be one of the priorities of — of the committee, and the key here is just timing, how we proceed.

So, will UNCLOS finally get through?  The SFRC has positively voted it out before, only to have it fail to receive a floor vote.  It’ll be interesting to see if the objecting Senate floor votes are still there to resist this treaty if (or, more likely, when) it comes out of the SFRC again.  I suspect Senate opposition has lessened given the shift in its membership post-election, not to mention the power the Administration may wield in the near term.  As a result, it sure looks like like the prospects for UNCLOS accession are now more promising than ever before.

The Supreme Court heard oral argument on Monday in the terrorism victim asset attachment case of Iran v. Elahi. (Transcript here). The case is extraordinarily complicated but it boils down to a question of statutory construction. Elahi was one of a handful of terrorism victims who received payment from the United States government under the 2000 Victims of Trafficking and Violence Protection Act. Terrorist victims who successfully brought claims against Iran could secure payment from the United States under this statutory scheme provided they relinquished their rights to attach any Iranian property in the United States “at issue in claims against the United States before an international tribunal or that is the subject of awards by such tribunal.” Basically, the United States was willing to pay claims owed by Iran to the terrorist victims, and then subrogate those claims against Iran after payment was made. In exchange, the victim agreed not to pursue Iranian assets that the United States would use to set off military contract claims Iran was making against the United States before the Iran-United States Claims Tribunal.

Meanwhile, Iran successfully received a judgment against a third party, Cubic Systems, and sought enforcement of that judgment in the United States. Elahi immediately sought to attach the judgment to satisfy unpaid portions of its terrorist judgment. David Bederman on behalf of Iran argued that the attachment of the judgment was Iranian property “at issue” before the Iran-United States Claims Tribunal. The United States has indicated that in the event it loses a military contracts claim case before that Tribunal that it will seek to satisfy that judgment in part by setting off the $2.3 million Cubic Systems judgment. Therefore, Iran argued, Elahi has relinquished its right to attach that judgment because, to that extent, the Iranian assets are “at issue” before the Iran-United States Claims Tribunal.

Elahi, by contrast, argued that the property that is “at issue” within the meaning of the statute is not a judgment subject to attachment, but rather the actual military property that the United States was supposed to deliver prior to the Iranian Revolution but failed to do so after the Shah’s downfall….

One of the take-aways from Hillary Clinton’s confirmation hearing was the rise of the term “smart power.”  Sen. Clinton said:

“I believe that American leadership has been wanting, but is still wanted,” she said. “We must use what has been called smart power, the full range of tools at our disposal — diplomatic, economic, military, political, legal, and cultural… With smart power, diplomacy will be the vanguard of foreign policy.”

As explained in The Cable,

the framing of “smart power” was, so far as we can determine, actually introduced into the public sphere by former deputy to the U.S. mission at the U.N. Suzanne Nossel…

Suzanne, who is currently the Chief Operating Officer of Human Rights Watch (and a friend of mine) wrote a 2004 article in Foreign Affairs entitled “Smart Power” that set out her conception of the term. She has a further take on it here, in part describing it “as a synthesis of hard and soft, arguing that America’s military and economic preeminence and its cultural and ideological appeal need to be tied together in a brand of power that reinforces both.”

While Clinton’s use of the term turned it into a bon mot literally overnight, “smart power” as a concept has been getting wider and wider usage in recent years. Harvard’s Joe Nye, (who had also used the term “smart power” in his 2004 book “Soft Power“) further explored the idea of smart power when he founded the the CSIS Commission on Smart Power in 2006. John Edwards talked about smart power in 2007, saying:

“We need to re-engage the world with the full weight of our moral leadership,” Mr. Edwards said, in excerpts of his speech obtained from his campaign. “Not hard power. Not soft power. Smart power.”

Here on Opinio Juris, this past November Peggy had blogged about smart power and Obama’s foreign policy.

So, it has taken about five years for “smart power” to be an overnight success.  And now we will see how the concept is actually operationalized.

I have not been following the work of the Cambodia special chambers, which is probably why I found these views by James Bair (blogger, loyal OJ reader and soon-to-be JD from Northeastern Law School) all the more informative and interesting.  Bair is a former legal intern at the Extraordinary Chambers in the Courts of Cambodia (ECCC) and has followed the tribunal’s work closely since its inception.  He writes, “In light of the continuing allegations of corruption, and after the ECCC has continuously failed to provide the fundamentals of a fair trial at the Khmer Rouge Tribunal, I am reluctantly calling for the Court to be closed.”  Bair raises important questions and critiques of the hybrid model of international criminal justice.  Here’s an excerpt from his blog post, which can be found in full here:

During the Winter of 2007-2008, I worked as an intern in the Victims
Unit at the ECCC. I had the privilege of being there just as the Unit
first went into operation, and of seeing the first victims in the
history of international criminal law who were allowed to participate
as partie civille – to appear before the Court to tell their stories
and demand justice for themselves and the nearly two million people
slaughtered by the Khmer Rouge. I have written an article arguing that
the ECCC’s approach to victims offers a model for a more meaningful
form of international criminal tribunal. For the curious, the article
also offers the non-web-based citations for the arguments I lay out
below. My time working with victims at the ECCC, hearing their stories
and watching the hope with which they looked to the Tribunal’s work
was one of the most formative experience of my life. It reaffirmed all
that international justice could do for a country, even decades later,
to promote healing, and end impunity for some of the worst killers of
our time.

But today, I have finally reached a conclusion.

For the sake of the Cambodian people, who deserve more than a
billion-dollar show trial, and for the United Nations, which cannot
afford to continue lending its approval to illegitimate, ineffectual
cosmetic efforts, the ECCC should be closed. Any verdict this Court
enters will only provide fodder for those who claim that International
Justice does not and cannot work.

According to the Guardian, the ICJ may soon have a chance to opine on the numerous legal issues arising out of the current Israel-Hamas conflict in Gaza.  

The UN general assembly, which is meeting this week to discuss the issue, will consider requesting an advisory opinion from the international court of justice, the Guardian has learned.

“There is a well-grounded view that both the initial attacks on Gaza and the tactics being used by Israel are serious violations of the UN charter, the Geneva conventions, international law and international humanitarian law,” said Richard Falk, the UN’s special rapporteur on the Palestinian territories and professor emeritus of international law at Princeton University.

“There is a consensus among independent legal experts that Israel is an occupying power and is therefore bound by the duties set out in the fourth Geneva convention,” Falk added. “The arguments that Israel’s blockade is a form of prohibited collective punishment, and that it is in breach of its duty to ensure the population has sufficient food and healthcare as the occupying power, are very strong.”

A Foreign Office source confirmed the UK would consider backing calls for a reference to the ICJ. “It’s definitely on the table,” the source said. “We have already called for an investigation and are looking at all evidence and allegations.”

A cynic might wonder whether there is much significance to a judgment from a court which has no obvious enforcement powers (assuming the Security Council is not going to act) and is issuing a non-binding opinion at that.  But whether binding or advisory, such opinions mainly serve to rally public opinion or action, not actually to resolve a dispute.

Here’s a new job posting a colleague just sent along that even Ken might find of interest:

The DoD Office of General Counsel is soliciting resumes for multiple attorney term positions. Successful applicants will be part of an interagency team representing the government in over 200 habeas corpus petitions filed in D.C. District Court by individuals detained by DoD at Guantanamo Bay. These positions start immediately and are for a term of not to exceed 3 years. The positions are within National Security Personnel System (NSPS) Pay Band YA-2/3 (Salary: $39,407.00 - $130,211.00 depending on experience and qualifications). The ideal candidate should have a background in civil or criminal litigation, experience with intelligence matters, and an active security clearance. However, attorneys with any litigation experience are encouraged to apply. These positions are located in the Washington, D.C. area, with the potential for some travel to Guantanamo Bay. Selectees will be required to provide evidence that they are active members, in good standing, of the bar of the highest court of a State, US Territory or Commonwealth, or the District of Columbia.

So this video is obviously intended to defend the actions of the Israeli Defense Forces during their action in Gaza.   But it is fascinating in terms of its footage of precise IDF bombings, and its provision by provision discussion of certain relevant provisions of the Geneva Conventions.  Obviously, it is a piece of advocacy, but it is effective. Anyone have a link to a video defending Hamas’ actions under international law? (Thanks to Eugene Kontorovich for the link)

[Susan Benesch is a Fellow at the Center for Applied Legal Studies at Georgetown Law Center and a former guest blogger here at Opinio Juris.]

Simon Bikindi, the Rwandan pop star whose two-year trial at the ICTR was apparently the first attempt to criminalize music in international law, was just convicted of incitement to genocide but not, after all, for his songs, even though Rwandan genocidaires sang them like anthems while hacking people to death. The ICTR did find, notably, that the songs “amplified” the genocide, but it missed an important chance to develop jurisprudence on incitement to genocide.

ICTR prosecutors indicted Bikindi, inter alia, because songs that he “composed, performed, recorded or disseminated” were used in a propaganda campaign to incite the Hutu population to kill Tutsi. The indictment named three songs in particular, and the Trial Chamber’s first challenge was to pin down the meanings of the songs, since they were written in metaphorical (and possibly ambiguous) Kinyarwanda. For instance Bikindi composed Twasezereye (“We Bade Farewell”) in 1986 for the Silver Jubilee of Rwanda’s Independence, so it referred to freedom from Belgian colonialism, and also to freedom from the Tutsi-dominated feudal system that the Belgians left behind….

My favorite Darfur blogger, Michelle at Stop Genocide, has asked me to post the following plea.  I am, of course, happy to oblige.  If you want to vote, vote soon — the deadline is January 15 at 5 pm EST.  And please pass Michelle’s request on to anyone else you think might be interested.

I am writing today to seek your support for our current campaign, and am hoping that the many law professors who read your blog will be interested in passing this along to their students.  Ending the genocide in Darfur, which was submitted by Save Darfur Coalition President Jerry Fowler, is currently in the finals of Change.org’s Ideas for Change in America competition, but is far from making it into the top ten ideas that will be presented to the incoming Obama administration. I am contacting bloggers, organizations — anyone I can think of to help get out the vote and ensure that Darfur makes it onto the final list. It is critically important that we remind the new administration, with every chance that we get, that Darfur must be a “day one” priority.

This competition was created in response to Barack Obama’s call for increased citizen involvement in government.  Ideas for Change in America is a citizen-driven project that aims to identify and create momentum around the best ideas for how the Obama administration and 111th Congress can turn the broad call for “change” across the country into specific policies.

The final round of voting is happening now through 5pm EST on January 15th, so there is no time to waste.  On January 16, Change.org and the Case Foundation are co-hosting an event at the National Press Club in Washington, DC to announce the top ten rated ideas and then launch a national campaign behind each idea and mobilize the collective energy of the millions of members of Change.org, MySpace, and partner organizations to ensure that each winning idea gets the full consideration of the Obama Administration and Members of Congress.

Please visit Ideas for Change in America Today to vote for our idea. There, you’ll also find code to include a voting badge on your page.  You can also “endorse” the idea on the page, which shows your blog supports this initiative and gets the word out about your site to other concerned activists.

Thank you for your support.

Regards,
Michelle
Editor, http://genocide.change.org

Go vote!  A more deserving issue is difficult to imagine.

Look closely at this photo of a parachute containing ransom money landing on a hijacked vessel in Somalia.  Taken by the U.S. Navy, the photo, and this unusually insightful Time piece, details what I sort of predicted a couple of weeks ago.  The ballyhooed international effort, sanctioned by the UN Security Council, to suppress Somali pirates is going nowhere, mostly because there is still no authority to chase the pirates once they enter Somali waters.  Money is still flowing and, as the Time article points out, the pirates are getting richer and are marrying the prettiest ladies in the neighborhood.

Hold the presses! President-elect Obama will issue an executive order in his first week in office requiring the U.S. detention center at Guantanamo Bay to be closed…or at least the process of planning the closure of Guantanamo to begin…. or the process of thinking about a plan to do something about Guantanamo…or something like that.  AP reports:

Amos Guiora has an essay up on Jurist concerning the Israeli military operations in Gaza. He writes:

The IDF launched Cast Lead after two significant developments: Hamas had fired 6,000 missiles from the Gaza Strip into southern Israel during the past three years after Israel had unilaterally disengaged from the Gaza Strip and Hamas had unilaterally violated an Egyptian negotiated cease-fire.

This is classic self-defense; to that extent, Operation Cast Lead is not different.

From a legal perspective, however, there are three critical differences between Cast Lead and previous IDF operations, each of which may pose significant challenges to existing interpretations of international law:

- declaring war against a non-state actor;
- re-articulating proportionality; and
- redefining what is a legitimate target in the context of collateral damage.

He argues that the legal challenges posed by the Israeli military operations in Gaza are best illustrated in how proportionality and collateral damage are discussed. He later writes:

By expanding the definition of “legitimate target,” the IDF has narrowed the definition of “collateral damage.”

This new paradigm presents enormous risk, for it invariably leads to the photographs that have caused Israel significant damage in the court of international opinion. The visual images from Gaza during the last two weeks are far more powerful than any spokesman’s words.

However, Israel declared war on an organization, and by extension on all those involved in that organization — active and passive alike. That is precisely how Operation Cast Lead is different from all previous Israeli operations…

[Military necessity] does not — and must not — mean that all Gazans are legitimate targets. Israel’s Defense Minister declared war on Hamas, not on Gaza. The IDF must minimize collateral damage; to do otherwise is a violation of international law.

Further, Israel must not ignore its international humanitarian law obligations. To do otherwise is a violation of international law.

I’m not sure whether, in light of the Israeli attacks in Lebanon from a year and half ago, the Gaza operations are “different from all previous Israeli operations,” but that’s not his main point. As usual, Guiora gives a good sense of the various legal and strategic issues that come into play. His essay is a valuable contribution, not only in regards to Gaza, but more broadly regarding the issue of the evolution of armed conflict, which is increasingly against non-state actors in urban environments, and whether international law will or should change to adjust to these new strategic realities. (Paging Philip Bobbitt.)  Check it out.

‘Whatever are you dreaming of, sir?’  Mathilde asked him.  There was a note of intimacy in her question, and she had come back running and was quite out of breath in her eagerness to be with him.  Julien was tired of self-suppression.  In a moment of pride, he told her frankly what he was thinking.

(The Red and the Black, vol. 2, chapter 40, ‘Queen Marguerite’.)

With this, I think, the series comes to a close.  Roger posted up a useful survey a little while ago on reader reactions to this blog, and one was a greater emphasis on international law.  So I am going to bring this to a close, and focus more in international law in my posts.  I might move it over to my home blog, and there were a couple of lovely little epigraphs (“Russia follows French fashions in all things, but always at a distance of fifty years” or “I crave leave to slander France a little more”) that would be cute, but I think I should get more legally serious here.

You can follow the earlier blog posts for my views on closing Guantanamo and the evolution of policy around it … but anyway, here is the latest, from the ABC Stephanapoulos interview with President-elect Obama.

President-elect Barack Obama said this weekend that he does not expect to close Guantanamo Bay in his first 100 days in office.

“I think it’s going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do,” Obama said in anexclusive “This Week” interview with George Stephanopoulos, his first since arriving in Washington.

“It is more difficult than I think a lot of people realize,” the president-elect explained. “Part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it’s true. And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo-American legal system, by doing it in a way that doesn’t result in releasing people who are intent on blowing us up.”

But Obama said unequivocally that it will close. “I don’t want to be ambiguous about this. We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our Constitution. That is not only the right thing to do but it actually has to be part of our broader national security strategy because we will send a message to the world that we are serious about our values.”

Obama said that he is not ruling out prosecution for crimes committed by the Bush administration and left open the possibility of appointing a special prosecutor or commission to independently investigate abuses of power and illegal activity. 

Deborah has already mentioned the bill introduced this week by Rep. John Conyers for a National Commission on Presidential War Powers and Civil Liberties, which has been likened in the popular press to a truth and reconciliation commission. (A draft version of the bill is available here.)  I think this is a somewhat inaccurate description. 

Truth commissions are often focused  on understanding the past and moving forward by ”reconciling” the parties that have been in conflict.  Amnesties often play a big role in truth and reconciliation commissions. In my quick flip through the bill, I didn’t notice anything about amnesties. I did notice quite a bit about Commission having subpoena power and the punishment of refusing to comply with a Commission subpoena. Ultimately, the Commission will write a preliminary and a final report of its findings, including recommendations for ”corrective measures” and further action.

If anything, this seems a little less like a truth and reconciliation commission than a “truth and clean-up commission.” That is, this is less about reconciling and making nice purely in order to make nice, and more about figuring out exactly what happened under the guise of unreviewable war powers so that we can try and clean up the mess that is being left behind by the Bush Administration…

OJ fellow-traveller Marko Milanovic has a typically excellent discussion of the newly-released secret OLC memos — discussed in toto by Deb here — concerning the legality of the invasion of Iraq.  I’d tell you to go read it, but if you haven’t already added EJIL:Talk! to your RSS reader by now, there’s really no saving you.

Those who defend Israel’s use of armed force — in Gaza and elsewhere — often complain that critics reflexively assume the worst about Israel’s intentions. There is more than a grain of truth to that, but Israel doesn’t help itself with its inability to admit that faulty intelligence sometimes leads it to make mistakes.  Case in point: the attack on a UN school on Tuesday that killed 30 Palestinian civilians and wounded 55.  Israel’s first response was to claim — as it always does — that the school was being used as cover by Hamas militants:

The Israel Defense Forces said a mortar-firing operation and a pair of prominent Hamas operatives — Imad Abu Askhar and Hassan Abu Askhar — were at the occupied school hit Tuesday. The two were among the Hamas militants killed in the strike, an IDF statement said.

“This is not the first time that Hamas terrorists have used Palestinian civilians as human shields and has exploited their deaths for the benefit of the international media,” an Israeli statement read. “Israel will continue to treat as valuable the lives of all Palestinian civilians and refuses to devalue the lives of Gaza residents in the manner of Hamas.”

That claim was short-lived.  Israel has now been forced to admit that its attack on the school was not, in fact, a response to enemy fire originating from within the school…

Kudos to John Garvey for focusing on “institutional pluralism” as the overarching theme of this year’s AALS. As he noted in introducing the theme, “This year’s theme focuses on the values of our institutional differences. Institutional pluralism is a good thing for our students in the same way choices are good for consumers in other fields…. A community of scholars working on the same problem, or in the same idiom, may accomplish things a group of disconnected individuals could not.” The focus was on law schools that are truly distinctive, either because they are religiously affiliated (Notre Dame, Cardozo, Pepperdine, etc.), historically black (Howard), or pursue intellectual efforts from a particular point of view (George Mason).

What struck me from attending the AALS and thinking through the idea of institutional pluralism is that the idea does not fit nicely when it comes to the discipline of international law. We used to talk about the “New Haven School” but in the current environment almost no one speaks of a school of thought in international law today that is pegged to a particular law school. Some schools may have an emphasis in one specialty or another, but no law school seeks to distinguish itself as uniformly following a school of thought. The revisionists do not cluster together at one law school while the international legal empiricists cluster at another. One cannot examine the faculties populating the top law schools in international law and accurately say that a school of thought is percolating from that locale….

This morning one can find in the “What’s New” section of the U.S. Justice Department website a rich list of Bush administration legal opinions dating back to 2002 on an array of topics in international law. Here are a few of the first on the list…

Philippe Sands gave an extensive interview on NPR’s Fresh Air yesterday.  Sands is already on record with his view that torture has occurred as a part of U.S. detention policy at GTMO and that high level officials are responsible for these acts.  Although I’m not sure he had much new to say, his careful and eloquent arguments make for easy listening.  He touts the recent Armed Services Committee report and the NYT editorial as consistent with his views.  And Sands names names. But he qualifies his campaign as one focused on investigation, not prosecution, to see which officials were responsible for waterboarding detainees, acts he views as clearly constituting torture.  Highest on his list, despite the lack of a paper trail, is David Addington, followed shortly by Donald Rumsfeld and Jim Haynes.  He characterizes Alberto Gonzalez as a “bag carrier” and John Yoo, as a “rubber stamp,” but both make his top 5.  Also on Sands’ radar screen are Doug Feith and Paul Wolfowitz.

I’m dubious that Sands’ views will have much traction with an Obama Administration seeking to heal a bipartisan divide and deal with a host of other pressing problems.  Indeed, like the NYT editorial, Sands recognizes the gap between what he’d like to see happen and what will likely happen.  As a result, he focuses his advice for Obama in a less punitive direction: (a) an independent inquiry of the process by which torture was allowed to occur by someone like Patrick Fitzgerald; (b) an unequivocal rejection of torture by the USG in accordance with international standards, namely the Convention against Torture (CAT); (c) a quick closure of GTMO; and (d) a return to criminal law frameworks for combating terrorism in lieu of the “war on terror” moniker, which Sands suggests has caused the same sorts of problems that arose in debating how to characterize the IRA during The Troubles.

In particular, I found two of Sands’ statements quite provocative…

A single, bad-weather week in January seems to bring more actual news than blog commentary about it. Among under-blogged tidbits this week:
• A federal court in Washington heard the first post-Boumediene case about whether constitutional rights extend to U.S. military-held detainees in Afghanistan;
• Senator Feinstein (no kidding) introduced a bill that would not only mandate the closure of Guantanamo, but also limit the use of certain interrogation techniques, prohibit interrogation by contractors, and require the International Committee of the Red Cross be notified of all detainees in U.S. custody (see S. 147, the Lawful Interrogation and Detention Act of 2009);
• House Judiciary Committee Chairman John Conyers proposed legislation to create a National Commission on Presidential War Powers and Civil Liberties, a blue-ribbon panel of outside experts to probe Bush administration practices of detainee treatment and warrantless wiretaps; and
• Published rumors emerge that Anne-Marie Slaughter (past president of the American Society of International Law and author of, among other works, A New World Order) may be tapped to head the State Department’s big-think Office of Policy Planning.

As it is still AALS season (and duly attuned to the time-consuming dangers of untenured blogging), I’ll just pick up on the Afghanistan case. You’ll recall that when the Supreme Court announced last summer that detainees held at Guantanamo Bay had a right to a habeas corpus review under the U.S. Constitution, giant-question-left-open #1 was whether that right extended to detainees held in what looked like more traditional circumstances of armed conflict. Did Boumediene mean for habeas to reach the 600-some detainees now held at Bagram Air Force Base in Afghanistan? Justice Kennedy’s ruling in Boumediene was nothing if not intensely functional in nature, so the parties’ briefs (and argument) devoted substantial time to discussing how the Kennedy criteria for determining when/whether the U.S. Constitution applies extraterritorially: (1) the citizenship and status of the detainees and the process for determining their status; (2) the nature of the sites of apprehension and detention; and (3) the practical obstacles to extraterritorial application of the constitutional right. As usual, the best account of the hearing can be found at Scotusblog.

Yesterday’s upshot:

U.S. District Judge John D. Bates strongly implied that he thought some individual cases could go forward without disrupting U.S. military operations at an airfield in Bagram, Afghanistan. He did so in the face of repeated arguments by a Justice Department lawyer that any access to the courts for even a single detainee at Bagram would necessarily extend to all detainees held by the U.S. anywhere around the globe. Deputy Assistant Attorney General John C. O’Quinn said that “if habeas applies to Bagram, it runs to the four corners of the world.”

For you law-of-armed-conflict fans, looks like Judge Bates was particularly interested in where the petitioners were initially captured; most claim they were no where near Afghanistan much less an Afghan battlefield when taken into custody. (Petitioner Redha al-Najar, for example, has witnesses who say he was in his home in Karachi, Pakistan when taken.) While the issue looks like it arose at the 3.5-hour hearing in discussions of Kennedy’s practical-obstacles test (it’s not like the military would have to pull witnesses off the battlefield to testify since these guys weren’t seized anywhere near a battlefield), it starts to sound an awful lot like Judge Bates (whether he knows it or not) is preemptively worrying about the merits of the core LOAC questions needing to be faced: Is there a non-international armed conflict between the United States and (say) Al Qaeda that, with adequate domestic authorization, would allow the U.S. to capture Pakistanis (or Americans for that matter) anywhere they might be found? How direct does participation in such a conflict really need to be to justify detention in such a setting (assuming the direct participation standard really matters to anything other than targeting)?

With it still unclear what position the new Obama Administration will take on such weighty matters (a question also on the judge’s mind), I wouldn’t look for that question to get settled on the merits in this forum anytime soon. In the meantime, though, we may learn a little more on the facts. After yesterday’s hearing, Judge Bates ordered the government to tell the court exactly how many detainees there are at Bagram, how many are Afghan citizens, and how many were captured elsewhere. Stay tuned.

I met my client yesterday for the first time.  For obvious reasons, I cannot recount the substance of what he, I, and his legal associate, Peter Robinson, discussed.  But I thought readers might be interested in my impressions of the visit and my sense of Dr. Karadzic, which bears little resemblance to the image portrayed in the media.

First, the UN Detention Unit itself.  You can see what it looks like in the photo above.  The prison is located in a very nice part of The Hague; indeed, it is abutted by a series of pretty little row houses.  As an American, that was a bit of a shock – we hide our prisons in the middle of nowhere, especially those that house inmates convicted of the very worst crimes.  (Compare the supermax prison in Florence, Colorado, which housed Timothy McVeigh and continues to house Omar Abdel Rahman, Jose Padilla, the Unabomber, and Eric Rudolph.)

Once inside, the Detention Unit resembles most any prison..

Are we seeing a new media template?  There looks to be a trend of established, well-respected (but in some cases, relatively low circulation) print journals teaming up with bloggers to create online content that joins timely reportage and commentary with traditional longer essays and reported articles.  Even the New Yorker (the New Yorker!) has added blogs to its site.  (Steve Coll’s blogging from Pakistan this past week has been terrific.) The Atlantic Monthly, in my opinion, does it best.

Following that trend, Foreign Policy magazine’s website (which is part of the Slate group) relaunched this week as a mix of journal content, op-eds, and blogs by both established bloggers (Dan Drezner, the old “Passport” blog team, Marc Lynch), veteran journalists (Tom Ricks) and new bloggers from the academy and beyond (Stephen Walt, Philip Zelikow, David Rothkopf).  Here’s a sampling of the many offerings at ForeignPolicy.com this week:

• Must-read interview with General David Petraeus from FP magazine.
• The Argument: A daily blog of expert commentary on global economic issues has a take on the Gazprom crisis here.
• The Cable: A Gawker for national security obsessives and wannabes (gossip on who’s getting what jobs at State is here; chatter about the now-postponed dinner party this evening at Senator Kerry’s home is here.)
• The Shadow Government: Promises to be a commentary on the foreign policy of Obama administration from experienced members of the loyal opposition (from academia and government).  Philip Zelikow gets started with a critique of the Bolton/Yoo op-ed on restoring senate control over treaty making (which Peter discussed here).

This is an extraordinarily ambitious relaunch with an impressive group of contributors who have already begun to enliven the blogosphere.  Congratulations to Foreign Policy!

I’m here at the AALS annual meeting enjoying the beautiful surroundings of San Diego. The Malibu winters are brutal and therefore the chance to flee one part of glorious southern California for another part of glorious southern California is most welcome.

But I must admit I am completely agnostic about attending the AALS. I scan the program for the meager portions of international law that are served each year. This year is no different, and it is safe to say that one morning at the ASIL annual meeting is more fruitful for the international scholar than four days at AALS.

Which begs the question, should international law professors attend AALS? I can think of three possible reasons for attending: (1) AALS allows one to network with the larger academy outside international law; (2) AALS provides an opportunity to attend panels on subjects you do not write about but teach; and (3) AALS offers the best opportunity to look at the big picture of the legal academy….

The New York Times has a thoughtful piece by Adam Liptak this weekend on the Obama Administration’s difficult choice in its forthcoming brief in the Supreme Court case of al-Marri v. Pucciarelli. Essentially, the Obama Administration will have to choose between continued detention, deportation to a third country, or prosecution.

Each choice is perilous. If Obama chooses continued detention he will affirm much of the Bush Administration’s central claim that this really is a war on terror and that the legal framework of war authorizes detention of enemy combatants during continued hostilities. Treating terror as war and terrorists as warriors would enrage civil libertarians. Failing to do so would leave Obama open to criticism for being soft on terrorism. Forcing this question in Obama’s first month in office should be avoided at all costs.

That means Obama should find a way to render the case moot….

John Bolton and John Yoo have this op-ed in today’s NY Times vaunting Article II treaties over congressional-executive agreements. While conceding the fact of CEAs in the international economic context, the duo argues that going the CEA route for such agreements as the ICC and a successor to the Kyoto protocol “would pose a serious challenge to American principles of law and democratic governance.”

The piece is significant in itself, drawing a possibly defensible sovereigntist perimeter up against an Administration that will surely be more friendly to internationalist initiatives (defensible insofar as it appeals to the Senate’s institutional prerogatives rather than to politics).

If the Obama Administration is looking for contrary authority, it will have no shortage of ammunition from other scholarly quarters. Those would include none other than John Yoo himself. In this 2000 article in the Michigan Law Review, Yoo had kinder words for CEAs, arguing that for international agreements implicating plenary congressional powers under article 1, section 8, the CEA should stand as the exclusive mechanism of legislative approval.

Reserving areas within Article I, Section 8’s ambit for approval by congressional-executive agreement, rather than by treaty, preserves textual and structural elements of the Constitution as well as promoting the original understanding. We can see this by considering the ramifications of the alternate approach, which would make treaties the exclusive method for making international agreements. First, treaties remain an executive power that excludes the branch most directly accountable to the people, the House of Representatives. Second, unlike statutes, treaties have no defined subject matter, which means that the treatymakers can enter into an international agreement on any matter, regardless of whether the Constitution grants control over it to another branch. Third, most internationalist legal scholars believe that treaties are generally self executing – if their terms are clear, treaties do not require implementing legislation by Congress, but instead are to be automatically enforced by the courts. Congressional-executive agreements, on the other hand, promote democracy by infusing foreign policymaking with House participation. Their use formally guarantees that the same lawmaking process will apply to laws that have the same effect in regulating domestic conduct.

I don’t think the framework supplies a workable divide between treaties and CEAs — it’s too difficult to figure out what’s in Congress’ plenary power, if anything (the President obviously has a hand in international economic matters, for instance). Historical practice is the better guide, practice which (as with any norm channel) is subject to evolutionary change. Human rights agreements might pose the leading edge of an expanded CEA practice (perhaps, to play out Yoo’s line, under Congress’ authority under the Offenses Clause). Particulars aside, with the change of parties in the White House, beware of adjusted constitutional theorizing!

John Pike, of GlobalSecurity.org website, has a provocative op-ed in today’s Washington Post (January 4, 2009, B3) arguing that the evolution of battlefield robots might mean robots as the soldiers that do the killing on future battlefields … For a lot of reasons, I don’t think this is where the evolution of battlefield robots will go, at least in the foreseeable future.  

I’m not, by the way, opposed in absolute principle to robots on the battlefield that might eventually make autonomous firing decisions.  It is a question of what the technology of the future is able to do and not do.  I just don’t think that is really what current robotics efforts are about in the US military - far from finding ways to replace the human shooter with a robot shooter, the effort today is to roboticize everything but the human shooter.  

But who knows what future technology might be able to do, superior to human decision-making ability in the stress of battle … Is it so very hard to imagine a future, and a future technology, in which it was a war crime for the human, rather than the robot, to decide to fire the weapon?  

So now, a challenge to our readers … can you come up with a script scenario for any Star Trek show in which someone is being tried for war crimes for having decided to shoot, rather than letting the machine do it?  If anyone wants to offer something, put it in a paragraph or so in the comments and if we get any, I’ll let our resident OJ TV writer, Kevin, judge them.

According to the ever-reliable Sudan Vision Daily, the Pre-Trial Chamber has already decided to issue the arrest warrant for Bashir:

The entire Sudanese people will not be surprised if the International Criminal Court issued an arrest warrant against the Sudanese President Omer Al-Bashir because the decision of the ICC judges was circulated by the UN chief Ban KI-moon, the US State Department and another international powers.

I’d really like to read the decision.  If you are reading this, Mr. Bellinger, would you mind sending me a copy?

… economics and Hume are the fashion.

(The Red and the Black, volume 2, chapter 53, “The Clergy, Their Forests, Liberty.”)  Special edition for … Eric Posner, Adrian Vermeule, Andrew Guzman, Jack Goldsmith, and Kal Raustiala!  (Utilitarianism has a long cultural, indeed literary, history.)

Comments like this one, made not by some obscure commenter but by David Bernstein, a law professor at George Mason and a member of The Volokh Conspiracy, in response to my Dershowitz post below:

Herein the phoniness of international law.  Humble Law Student has raised several significant questions with Heller’s analysis, including whether it matters under international law, as it surely does, if Hamas is using human shields in such a way as to ensure that Israel’s actions in self-defense will wind up killing civilians. The answer: dead silence. Heller, and the like-minded, are all just like O’Donnell. They think Israel shouldn’t exist, so that anything that Israel does to defend itself is illegitimate. That position at least has the advantage of being forthright, if stupid. Hiding behind international law when you are really just anti-Israel is both stupid and dishonest.

I have been accused of being overly critical of Israel before.  I have been accused of being too pro-Palestinian before.  But I have never — not when I was a student and far more radical than I am now, not when I was a lawyer, not when I was a TV writer, not since I’ve been an academic — been accused of believing that Israel should not exist.  Princeton Wordnet defines “forthright” as “squarely, directly, and without evasion.”  I dare anyone to find anything I have ever written that suggests, much less claims “squarely, directly, and without evasion,” that I am opposed to the existence of Israel.  I will happily resign from the blog if someone can do so.

It is sad that a post about IHL and ICL in which I specifically avoided arguing that any of Israel’s attacks on Gaza were disproportionate — largely because, as I said, I think proportionality arguments are essentially useless — would lead to such vitriol.  Proof positive that intelligent dialogue about Israel issues is nearly impossible.

UPDATE: Professor Bernstein has apologized in the comments for missing my response to Humble Law Student, so I have removed the second half of the original post.  I am leaving the first half up with a new response, for reasons that should be evident.  Nevertheless, I appreciate Professor Bernstein’s apology.

Nan Hunter has posted on her blog the transcript of a phone conversation from April 23, 1971, between Henry Kissinger and the poet Allen Ginsberg.

Ginsberg was trying to set-up a dialogue among Kissinger (and other Nixon officials) and peace activists. He was concerned that Kissinger might not know how to end the Vietnam War and he said he had some suggestions. (Unfortunately, they’re not in the transcript.) The conversation slalomed back-and-forth between the seemingly serious and the weird. I love this bit about the proposed meeting:

G: It would be even more funny to do it on television.

K: What?

G: It would be even more useful if we could do it naked on television.

K: (Laughter )

I will leave that to your imaginations.

Alan Dershowitz published an editorial yesterday in the Wall Street Journal that argues Israel’s attacks on Hamas in Gaza are “perfectly proportionate.”  I have no desire to argue the substance of that point, in part because views on Israel and Palestine are largely impervious to facts or argument (on both sides), but largely because the concept of proportionality is so amorphous and ill-defined as to be essentially useless. (I have explained here, for example, why it is very unlikely that the ICC will ever convict a military commander of the war crime of launching a disproportionate attack.)  That said, I think it is important to address some of Dershowitz’s basic misconceptions concerning the concept of proportionality in international humanitarian law and international criminal law.  If we cannot agree on the framework for analyzing proportionality, it will be impossible to even begin to have a productive conversation about the analysis itself…

I guess what surprises me is that the Vatican ever did have a rule of automatically adhering to international law. But as of yesterday, that rule, along with the rule automatically adopting Italian law as part of its internal legal order, is history.  

The Vatican has [] decided to scrutinise international treaties before deciding whether or not to adhere to them.

It has recently refused to approve a United Nations declaration decriminalising homosexuality.

The wording went too far, Vatican officials said, in placing different sexual orientations on the same level.

Some legal observers believe that the Vatican is simply trying to assert its legal independence in cases involving for example, civil unions, divorce, living wills, or euthanasia.

If Italy were to legalise same sex marriages or euthanasia, for example, the Vatican would now be able to refuse to recognise that. 

What happens to litigation that obviously should be pursued in a foreign country but is prevented from doing so by a forum non conveniens blocking statute? That’s the question presented in a recent Florida state court case of Scotts Co. v. Hacienda Loma Linda.

Here are the basic facts: Scotts sells a product to Hacienda that allegedly destroys thousands of Hacienda’s orchids in Panama. Hacienda sues Scotts in Miami and Scotts successfully dismisses the case on forum non. Panama has a “forum non conveniens blocking statute” that precludes Panamanian courts from asserting jurisdiction over any case that has been brought in Panama as a result of a foreign judgment of forum non conveniens. Hacienda files a complaint in Panama and invokes this blocking statute. The Panamanian court relies on this statute and concludes that it lacks jurisdiction. Hacienda seeks to reinstate the action in Florida arguing that the Panamanian court is not an adequate alternative forum. The Florida court denies the motion. Here is the Florida state appellate court’s reasoning:

In response to Roger’s recent survey, many of you called for more international law discussion here at Opinio Juris.  In that spirit, here’s an interesting nationality question to ponder as you enjoy your New Year’s Day celebrations:

It was already a packed flight from Amsterdam to Boston, but passengers and crew were more than happy to make room for one extra person this morning when a Ugandan woman gave birth to a baby girl.  Two doctors aboard Northwest Airlines flight 59 sprang into action when the call came across the Boeing 757’s public address system for a medical emergency. The physicians found a woman 8-1/2 months pregnant and moaning with severe abdominal pain. She was obviously in labor and the child’s head had already crowned, according to the doctors. As the plane cruised somewhere over Canada, the doctors laid the woman across a row of seats in coach class while a husband and wife from Danvers held up a blanket to create a makeshift delivery room. At about 9 a.m., the woman gave birth to a 6-1/2 pound baby girl she named Sasha. . . . When the flight landed at Logan International Airport at 10:30 a.m., mother and daughter were whisked by ambulance to Massachusetts General Hospital, where they are reported to be doing well.  Customs officials said that Sasha was deemed a Canadian citizen, because she was born over Canadian airspace.

So, did U.S. Customs officials get this right?